Opinion
(February Term, 1893.)
Injunction — Remedy at Law — Statute of Limitations — Sale Under Power.
Where a mortgagor in possession has a full defense to an action for ejectment when brought by a purchaser at a sale under a mortgage barred by the statute of limitations, the Court will not interfere by injunction to prevent a sale threatened by the mortgagee. It would be otherwise if there were a contest as to the amount due under the mortgage.
MOTION to dissolve an injunction, heard before Connor, J., at January Term, 1893, of NEW HANOVER.
E. S. Martin for defendants.
No counsel contra.
The complaint, used as an affidavit upon which the order has been granted, alleged that the plaintiff, in March, 1871, in order to secure his promissory note to defendants, due 1 April, 1872, executed to them a mortgage upon certain land in Wilmington, with the usual power of sale in case of default in the payment of the note; that no payment has ever been made on the note and mortgage, which became barred by the statute of limitations on 1 April, 1882, and no action has ever been brought on the same by the defendants; that the plaintiff has (260) been in actual possession of the land ever since the execution of the mortgage; that defendants have advertised the land for sale on 2 February, 1893, and plaintiff prays that they be perpetually enjoined from selling, etc.
From the order dissolving the injunction, plaintiff appealed.
Upon the allegations in the complaint taken as true the defendants' bond and mortgage are alike barred by the statute of limitations. The Code, sec. 152 (2) and (3). A sale under such mortgage would carry to the purchaser no title. The plaintiff mortgagor, being in possession, has a full defense to an action for ejectment when brought by the purchaser. Capehart v. Biggs, 77 N.C. 261; Fox v. Kline, 85 N.C. 173. The Court will, therefore, not interpose by injunction merely to prevent a cloud upon the title. Southerland v. Harper, 83 N.C. 200; Browning v. Lavender, 104 N.C. 69.
It would be otherwise if the contest was as to the amount due under the mortgage (whether any balance is due at all, or how much), since then, if any balance is due, the purchaser at the mortgage sale will get a good title, and it might put the plaintiff mortgagor to a serious disadvantage if there were a sale before the amount due is determined. Purnell v. Vaughan, 77 N.C. 268; Capehart v. Biggs, supra; Pritchard v. Sanderson, 84 N.C. 299; Harrison v. Bray, 92 N.C. 488; Gooch v. Vaughan, ib., 610.
AFFIRMED.
Cited: Fleming v. Barden, 127 N.C. 217; Smith v. Parker, 131 N.C. 471; Menzel v. Hinton, 132 N.C. 661, 667; Miller v. Coxe, 133 N.C. 582.
(261)